Wherever you fall on the political spectrum, there is no denying that the first 200 days of President Trump's administration have been an interesting time for employers impacted by immigration regulations. The whirlwind of activity—much of it playing out in federal courts across the country—has created uncertainty that can make it difficult for businesses to operate and plan for workforce movement. In an effort to remove some of that uncertainty, this article provides a brief summary of what has actually changed and makes several recommendations regarding how employers can prepare for the new environment in which they likely will be operating.
Limits on Legal Immigration – the RAISE Act
Most recently, President Trump promoted legislation introduced to overhaul the family- and employment-based immigration systems currently in use. The Reforming American Immigration for Strong Employment (RAISE) Act radically limits family-based immigration to spouses and minor children of U.S. residents, ends the diversity lottery and restricts the number of refugees able to gain residency. For employment-based immigration, the RAISE Act creates a skills-based point system that factors in English-language proficiency, education, age and salary. Many other pieces of legislation have been proposed to amend the employment visa system. None is close to becoming law, and any legislation is unlikely to be enacted in its current form. However, there are common components to the proposed laws that employers should note, including a preference system that favors individuals educated in the United States and a substantial increase in the wages that must be paid to workers.
Executive Orders, the "Travel Ban" and National Security
The most contentious immigration issue of President Trump's brief time in office has been the travel ban on foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen. In June, the U.S. Supreme Court partially granted the current administration's request to reinstate the travel ban by limiting its scope through a "bona fide relationship" test. Specifically, foreign nationals from the six listed countries would be barred from entering the United States if they lacked a close familial relationship with a person in the United States (including parents, spouses, children and siblings) or a bona fide relationship with a U.S. entity (including students and applicants with established eligibility for an employment-based visa). The Supreme Court will revisit the issue in October.
Another key measure in the push to improve security of the United States has been the recent implementation of "extreme vetting." Extreme vetting employs an in-depth visa questionnaire for U.S. consular officers to examine applicants for immigrant and nonimmigrant visas. The questionnaire seeks social media usernames, 15 years of travel and employment history, sources of funding for travel, and other biographical information. Extreme vetting will create delays in international travel as individuals wait to clear security checks.
President Trump's "Buy American, Hire American" Executive Order announced his intention to reform the H-1B visa program and to increase enforcement against those who abuse the program. This executive order (EO) creates no new law or regulation; actual change to the H-1B visa program must occur through Congressional action. In connection with this EO, the Department of Labor (DOL) also announced that it would strenuously investigate violations of the H-1B visa program. Similarly, an EO issued in January called for interior enforcement activities by federal agencies. The increased enforcement activities will include both the apprehension of individuals unlawfully present in the United States and audits of employers' visa applications and Forms I-9.
Rollback of President Obama's Measures
In addition to implementing his own measures, President Trump has sought to eliminate some of the Obama Administration's actions relative to immigration. In July, the Department of Homeland Security delayed the implementation of the International Entrepreneur Rule until at least March 2018. The Rule was to give the agency discretion to permit an initial stay of up to 30 months to facilitate an applicant's ability to oversee start-up entities in the United States.
Further, in June, the Trump Administration rescinded the deferred deportation program for unauthorized parents, known as "DAPA," which would have deferred deportation of parents of certain U.S.-citizen and permanent resident children through the use of prosecutorial discretion. Please refer to our September 6 immigration bulletin, " What Employers Need to Know About DACA Rescission Announcement."
What It All Means
There are important lessons to be learned from the President's activities thus far. Foremost is that compliance with existing immigration rules has never been more important; it is more prudent than ever to be prepared for government audits. Companies would be well advised to review their policies in all aspects of employment, from Form I-9 to visa usage to global mobility.
Second, the Trump Administration's policies have created greater delays for all those traveling internationally. In the face of this uncertainty, it is a good time for businesses to review their global mobility, recruitment and talent retention programs to ensure that their needs are being met. It is important to make timely and prudent decisions with respect to international travel and assess the best ways to move employees into the United States.
Finally, it is important to remember that substantial immigration reform requires bipartisan Congressional action, which is difficult to come by these days. President Trump has accomplished about all he can through EOs; additional EOs are likely to present policy goals rather than substantive legal changes. Thus, for all of the rhetoric and, at times, hysteria, surrounding immigration laws, substantive changes have been relatively limited, and any future change is likely to take considerable time to happen.